ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, MARCH 28, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC,
Petitioner
V .
Illinois Environmental Protection Agency,
Respondent
To: Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601 .
Please take notice that today we have filed via electronic filing with the Office of
the Clerk of the Pollution Control Board the Respondent's Memorandum in Opposition to
Commonwealth Edison's Motion for Leave to File a Reply to IEPA Memorandum in
Opposition to Motion to Compel . A. copy is herewith served upon the assigned Hearing
Officer and the attorneys for the Petitioner, Midwest Generation EME, LLC
.
Dated: Chicago, Illinois
March 28, 2006
LISA MADIGAN, Attorney General of the
State of Illinois
NOTICE OF FILING
PCB 04-216
Trade Secret Appeal
)
Sheldon A. Zabel
Mary A . Mullin
Andrew N . Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 28, 2006
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
BY:
Ann-Alexander,
Assistant Attorney General and
Environmental Counsel
Paula Becker Wheeler, Assistant Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 28, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME,
LLC
)
Petitioner
)
PCB 04-216
Trade Secret Appeal
v.
)
Illinois Environmental Protection Agency,
)
Respondent
)
MEMORANDUM IN OPPOSITION TO MIDWEST
GENERATION'S MOTION FOR LEAVE TO FILE A REPLY
TO IEPA MEMORANDUM IN OPPOSITION TO MOTION TO COMPEL
Under the Board's procedural rules, a reply memorandum will not be allowed
except to "prevent material prejudice ." 35 Ill. Adm. Code 101 .500(e). Petitioner has
utterly failed to meet that standard . While it claims that Respondent IEPA's
Memorandum in Oppos'tion to Midwest Generation's Motion to Compel "misrepresents
Midwest Generation's position and misquotes authority," it is in fact Petitioner's
proposed reply memorandum that contains significant misrepresentations .
Concerning the purportedly misquoted authority, the proposed reply
memorandum asserts, bizarrely, that Respondent's quoted language from the Board's
decision in Oscar Mayer & Co . v. Environmental Protection Agency,
PCB 78-14 (June 8,
1978) "does not relate to the parameters of discovery
." A copy of that decision, which
Respondent cited for the proposition that the Board does not allow discovery concerning
unrelated matters in record-only cases such as this one, is attached for your reference as
Appendix 1, with relevant portions highlighted . The entire decision, in fact, concerned
the scope of discovery
. It was issued in response to an IEPA appeal fro a hearing
officer order compelling answers to interrogatories that -
like Petitioner's discovery here
- concerned prior unrelated decisions by the Agency
. Appendix 1, p . 1 . The Board, in
reversing the hearing officer
.'s order, held that "[t]he scope of discovery
.
. . is controlled
1
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 28, 2006
by the general issue presented ." Appendix 1, p . 3. The discussion of the Board's
standard of review cited by Petitioner in its proposed reply (Petitioner's proposed reply at
2
; Appendix 1, p . 4) defines the "general issue presented" in that matter, which the Board
then concludes - in the language quoted in Respondent's opposition memo ndu - does
not concern the prior IEPA decisions requested in the interrogatories .
Concerning Respondent's purported misrepresentation of Midwest Generation's
position, Midwest Generation offers no specifics to support that assertion, but does offer
up its own misrepresentation of Respondent's position . The proposed reply
memorandum states that IEPA "appears to suggest" that communications regarding
Sierra Club's FOIA request are the only discoverable and relevant information, because
such communications are the. only documents we provided in our response . Petitioner's
proposed reply memorandum at 3
. In fact, as Respondent IEPA made quite clear in its
discovery response and Memorandum in Opposition - and is equally clear in the Board's
11
ruling in related matter 04-185 - we consider relevant any information that either should
have been included in the record (i . was considered by the Agency in its decision) and
was not, or any new information that was unavailable to either IEPA or Petitioner at the
time the decision was made
. The documents concerning the Sierra Club FOIA request
that IEPA'provided in discovery were the only relevant documents that were not already
included in the administrative record filed earlier .
Since the misrepresentations are on Petitioner's part, not Respondent's, rejection
of the proposed reply memorandum would not prejudice Petitioner, but its acceptance
would prejudice Respondent.
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 28, 2006
Conclusion
For the foregoing reasons, Respondent IEPA requests that Petitioner's proposed
reply memorandum be rejected .
Dated: Chicago, Illinois
March 28, 2006
Respectfully submitted,
LISA MADIGAN, Attorney General of the
State of Illinois
MATTHEW DUNN, Chief, Environmental
Enforcement/
Asbestos Litigation Division
I
BY:
Ann Alexander, Assistant Attorney
General and Environmental Counsel
Paula Becker Wheeler, Assistant -
Attorney General
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 28, 2006
APPENDIX I
W
RONIC FILING, RECEIVED, CLERKS OFFICE, MARCH 28, 2006
Illinois Pollution Control Board
State of Illinois
*1 OSCAR MAYER & CO ., PETITIONER
V .
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
PCB 78-14
June 8, 1978
INTERIM ORDER OF THE BOARD
On May 9, 1978, the Environmental Protection Agency filed a motion
for an Interlocutory Appeal and for stay of a ruling by the Hearing
officer in a matter concerning the scope of discovery in an action
under Section 40 of the Act to contest Agency denial of a permit .
Petitioner filed a Response on May 19, 1978, objecting to the
Agency's Motions . On May 25, 1978, the Board granted the Agency's
Motion for Interlocutory Appeal together with a stay in the
proceedings .
Section 39 of the Environmental Protection Act provides that the
Agency shall issue a permit on proof by the applicant that the
permitted activity will not cause a violation of the Act or of
regulations adopted in accordance with the Act
. Section 40 of the Act
provides that an applicant who has been refused a permit by the
Agency may petition the Board for a hearing to contest the decision
of the Agency and that the burden of proof in such hearing shall be
on the applicant .
While a very few of the Section 40 petitions filed with the Board
have involved a dispute between the applicant and the Agency over the
validity of the facts contained in an application, most Section 40
petitions arise from a' difference in interpretation of a regulatory
0 2065 Thomson/West . No Claim to Orig . U .S . Govt . Works
.
1978
WL 9190
Page 1
1978
(Cite
WL 9190 (I11 .Pol .Control .Bd .)
as : 1978 WL 9190 (111 .Po1
.Contro1.Bd.))
197E1kffA-,tT3R0NIC
FILING, RECEIVED, CLERK'S OFFICE, MARCH 28, 2006
1978 WL 9190 (ill .pol .control .Bd.)
(Cite as : 1978 WL 9190
(1ll .Po1 .Contro1 .Bd.))
Page 2
definition . Since
there is no provision in the Act under which the
Board might provide an advisory opinion in such a controversy, the
Section 40 petition affords the only avenue to secure a Board
interpretation of its regulations or a finding of fact, short of an
enforcement action
.
Fromm the beginning the Board experienced some difficulty in
structuring the hearing on a Section 40 petition . [FN1] one of the
continuing reasons therefore has no doubt been the early styling of
the proceeding in Board practice as a ""permit denial appeal ." It is
obviously not an appellate review of an administrative decision, nor
could it seem to be so when there has been no recorded . hearing and
written finding of fact at the permit issuance level . More
in
importantly,
appellate review
the Act
of
does
Agency
not
decisionsconfer
jurisdiction
. Neither is
on
a
the
Section
Board to
40sit
hearing available for a rehearing or contest of the adoption of Board
regulations or as a review of Agency policy and procedure in the
exercise of its permit authority under Sections 4 and 39 of the Act .
Under the statute, all the Board has authority to do in a hearing and
determination on a Section 40 petition is to decide after a hearing
in accordance with Sections 32 and 33(a) whether or not,*based upon
the facts of the application, the applicant has provided proof that
the activity in question will not cause a violation of the Act or of
the regulations .
*2 In a hearing on a Section 40 petition, the applicant must verify
the facts of his application as submitted to the Agency, and, having
done go, must persuade the Board that the activity will comply with
the Act and regulations . At hearing, the Agency may attempt to
controvert the applicant's facts by cross examination or direct
testimony ; may submit argument on the applicable law and regulations
and may urge conclusions therefrom ; or, it may choose to do either ;
or, it may choose to present nothing . The written Agency statement
to the applicant of the specific, detailed reasons that the permit
application was denied is not evidence of the truth of the material
therein nor do any Agency interpretations-of the Act and regulations
therein enjoy any presumption before the Board . After hearing, the
Board may direct the Agency to issue the permit, or order the
petition dismissed, depending on the Board's finding that the
applicant has or has not proven to the Board that his activity will
not cause a violation of the Act or regulations .
The Board opinion most frequently cited on the question of the scope
of a hearing on a Section 40 petition is Soil Enrichment Materials
Corporation v . EPA, 5 PCB 715 (1972) . Much therein is still
applicable
; however, it must be kept in mind that Section 39 of the
* 2005 Thomson/West . No Claim to Orig
. U .S . Govt . Works .
197ELVEX' MONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 28, 2006
1978 WL 9190 (I11 .Pol .Control .Bd .)
(Cite as : 1978 WL 9190 (I11
.Pol .Control.Bd.))
Page 3
Act was amended subsequent to that decision by Public Act 78-862,
approved September 14, 1973
. P .A . 78-862 established, in Section
39(a), definitive criteria for a detailed Agency statement to the
applicant of the specific reason for the denial of a permit
application
.
At 5 PCB 715, the Board said :
"Clearly the issue is whether the Agency erred in denying the
permit, not whether new material that was not before the Agency
persuades the Board that a permit should be granted ."
A cursory reading of that sentence
. might indicate to some that the
burden of the applicant in a Section 40 proceeding is to prove that
the Agency made an error in law, a misinterpretation of fact or a
failure in procedure in arriving at the Agency decision to deny the
permit
. To do so ignores the requirement of Section 39 that a permit
issues only on proof by the applicant that the_ activity in question
does not cause a violation off the Act or
- regulations . The Agency
errs in denying a permit only' when the material, as submitted to the
Agency by the applicant, proves to the Board that no violation of the
Act or regulations will occur if the permit is granted
. The
requirements of a Section 40 petition as set forth in the Board's
Procedural Rule 502(a)(2) further indicate the Boardns conclusion as
to the dictates of the statute .
Procedural Rule 502(a)(4) requires that in a Section 40 proceeding
the Agency must file within 14 days of notice, the entire record of
the permit application, including the application, correspondence,
and the denial
. The application is necessary to establish the facts
which were before the Agency for consideration
. The correspondence
file, if any, supplements the application insofar as it provides
additional facts
. The denial statement is necessary to verify that
the requirement of Section 39(a) of the Act has been fulfilled
. This
material, in the opinion of the Board, should be sufficient to frame
the issue of fact or law in controversy in any hearing on a Section
40 petition .
2005 Thomson/West
. No Claim to Orig . U .S . Govt
. Works .
197ELECIRONNIC
1978-WL 9190 (I11
FILING,
.Pol .Control
RECEIVED,
.Bd .)
CLERK'S OFFICE, MARCH 28, 2006
(Cite as : 1978 WL 9190
(111.Po1.Contro1 .Bd.))
-
If the Agency knows or ascertains, during the pendency of a permit
application, that either the facts or conclusions presented by the
applicant are inaccurate or incomplete, the Agency must disclose such
information in writing during the statutory permit review period or
in the detailed written statement of the reasons for denial required
by Section 39 of the Act . The Agency may not at hearing assertt
reliance on any material not included in the record, and disclosed to
the applicant in the manner described above, as the basis for Agency
denial of the permit, any more than the applicant may introduce new
material in support of the application that . was not before the Agency
at the time of denial ."
For the reasons set forth above, the Board, having reviewed the
order of the Hearing Officer entered on May 8, 1978, sustains the
order of the Hearing Officer in regard to Interrogatories 7 and 8 of
Petitioner's Interrogatories to the Respondent dated March 14, 1978 .
The Order of the~Hearing Officer is sustained as to Interrogatories
l(a) and 2(a) ; the Order of the Hearing Officer is reversed as to
Interrogatory 1(b) through l(g) ; Interrogatory 2(b) through 2(g), and
Interrogatories 3, 4, 5, 6, 9 and 10 .
The matter is remanded to the Hearing . Officer for revision of his
Order of May 8, 1978, consistent with the foregoing .
IT IS SO ORDERED .
Mr . Werner dissented .
Mr . Young
0 2005 Thomson/West . , No Claim to Orig
. U .S . Govt . Works .
Page 4
1978
1974ELI'ECTRONICWL
9190 (I11
FILING,
.Pol .Control
RECEIVED,
.Bd .)
CLERK'S OFFICE, MARCH 28, 2006
(Cite as : 1978 WL 9190 (111 .Po1.Contro1 .Bd.))
FN(1) Currie, David P ., "Enforcement Under the Illinois Pollution
Law," 70 N .W . Univ . L .Rev . 389, 475-479 (1975) .
1978 WL 9190 (Ill .Pol
.Control .Bd .)
END
OF
DOCUMENT
2005 Thomson/West . No Claim to Orig .
. U .S . Govt . Works .
t
Page 5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MARCH 28, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
.Petitioner
PCB
04-216
Trade Secret Appeal
V.
Illinois Environmental Protection Agency,
Respondent
CERTIFICATE OF SERVICE
I hereby certify that I did on the 2nd day of March, 2006 send by United States
mail a copy of Respondent's Memorandum in Opposition to Midwest Generation's
Motion for Leave to File a Reply to IEPA Memorandum in Opposition to Motion to
Compel, to :
Sheldon A., Zabel
Mary A. Mullin
Andrew N. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Dated: Chicago, Illinois
March 28, 2006
LISA MADIGAN, Attorney General of the
State of Illinois
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
BY:
I
/ 1-1
andrr, Assis&nt
-enh 1
Attorney General and
Environmental Counsel
188 West Randolph Street, Suite 2000
Paula Becker Wheeler, Assistant Attorney General
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
